Madhya Pradesh High Court
Indore Development Authority vs Director Cassandra Realty Pvt. Ltd on 10 January, 2020
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
W.A.No.116/2019
(Indore Development Authority Vs. Director, Cassandra
Realty Pvt. Ltd. & Another)
Indore, Dated: 10.01.2020
Per Vivek Rusia, Judge:
Ms. Mini Ravindran, learned counsel for the appellant. Shri V.K. Jain, learned senior counsel with Shri Ayushman Choudhary, learned counsel for the respondent No.1.
Shri Mayank Purohit, learned GA for the respondent/State.
The appellant/respondent No.2 has filed the present writ appeal against the order dated 23.04.2018, passed in W.P.No.8561/2011 whereby the writ petition has been disposed of by holding that the directions contained in the case of Tirathdas Saukatrai Projects Pvt. Ltd. Vs. Indore Development Authority will mutatis mutandis in the case of present petitioner also. There is a delay of 160 days in filing the present appeal, hence, the appellant has filed an application under Section 5 of the Limitation Act.
According to the appellant after passing of the order dated 24.03.2018 a proposal was given to the petitioner for taking his land by way of mutual agreement but the petitioner did not agree and insisted of monetary compensation or NOC, hence, delay has been caused in filing the present appeal. Writ petitioner has filed reply without disputing the fact about the proposal came from the appellant for mutual agreement but ready to execute the 2 agreement under the provisions of Section 56 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (in short hereinafter referred as the "Adhiniyam, 1973") only with respect to receiving the monetary compensation, therefore, in view of the above the appellant has make out the case for c0ndonation of delay, hence, the delay is condoned.
With the consent of parties, appeal is heard finally. The writ petitioner is a company registered under the companies Act. The petitioner owns an agricultural land and non-agricultural land situated in the Village - Kanadia comprising Survey No.51/2/1, 60/1, 40/3, 40/4, 40/5, 40/6, 42, 38/1, 38/2, 37/1, 37/2 & 40/1/2 area 1.926, 1.525, 0.541, 0.541, 0.541, 0.542, 1.372, 0.612, 3.113, 0.963, 0.959 & 1.088 (total area = 13.723 hecatares). The appellant in exercise of power under Section 50(2) has declared the intention to make a scheme under the Development Scheme. No.164. The W.P.No.9396/2006 and other number of writ petitions were filed by the several land owners whose land came under the scheme. Vide order dated 06.03.2007 this High Court had quashed the scheme. The IDA challenged the said order before the Apex Court but the same had been dismissed. Thereafter, the IDA had again published a notice dated 07.03.2008 for a new scheme No.168 in which all the lands of the land owners had again been included. Thereafter, notice was issued under Section 50(3) of the Adhiniyam 1973. Again various writ petitions were filed before this Court but the said scheme could not be finalized within one year and resulted into lapse of the entire scheme at the drafting stage 3 itself. The IDA again published a notice expressing its intention of framing the impugned scheme No.175 on the same lands which were included in its previously published Scheme No.164 & 168. Large area of lands belonging to the petitioners have also been included in the new scheme. By notice dated 05.10.2011 issued under Section 53 objections were invited from the land owners prior to the sanctioning of scheme by the State Government. After submitting the objections petitioner filed W.P.No.8561/2011 before this Court seeking following relief.
"(I) That Notice/Order dated 09.09.2011 (Annexure P/12) issued by the Indore Development Authority under sub-section (2) of Section 50 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 may kindly be quashed. (II) That notice/Order dated 05.10.2011 (Annexure P/13) issued by the Indore Development Authority under sub-
section(3) of Section 50 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 may kindly be quashed. (III) That the Indore Development Authority may kindly be restrained from framing Scheme No.(175), upon the same Survey Numbers of Lands, over which it had already framed Scheme Numbers (164) which was quashed and Scheme No.(168) stood statutorily lapsed, in terms of the mandatory provision, contained in the proviso appended to sub-section (4) of Section 50 of the M.P. Nagar Tatha Gram Nivesh Adhniyam, 1973. (IV) That any other Decision/Resolution/Order passed in the Files by the Indore Development Authority, for preparing and/or framing Sheme No.(175) may kindly be quashed.
(V) That any other relief which this Hon'ble Court may deem fit may also be kindly given to the writ petitioner."
It is clear from the aforesaid relief clauses that the petitioner has prayed for quashment of notice dated 09.09.2011 and 05.10.2011 and the entire proposed scheme.
4The writ petition remained pending for years together. The petitioner filed an application seeking disposal of the writ petition in light of the order dated 29.03.2016 passed in the case of Smt. Rupali Khemkar Vs. State of M.P. and order passed in W.A.No.281/2016.
The writ petition came up for hearing on 23.04.2018. Learned counsel for the petitioner submitted that the identical W.P.No.4321/2017 in the matter of Tirathdas Saukatrai Projects Pvt. Ltd(supra) has been set aside by the order dated 16.03.2018 and the case of the petitioner is identical therefore, this petition be also disposed of.
Shri Sudarshan Joshi, learned counsel appeared on behalf of the Indore Development Authority did not dispute the aforesaid submission, therefore, by order dated 23.07.2018 the writ Court has disposed of the writ petition by holding that the directions issued in the case of Tirathdas Saukatrai Projects Pvt. Ltd(supra) will apply mutatis mutandis in the present case also.
Being aggrieved by the aforesaid order now the IDA has preferred the present writ appeal before this Court.
Ms. Mini Ravindran, learned counsel for the appellant submits that the factual aspects of the present writ petition are different from the facts of the case of Tirathdas Saukatrai Projects Pvt. Ltd(supra). Present writ petitioner did not approach this Court for release of the land from the scheme but only prayed for quashment of notice dated 09.09.2011 and 05.10.2011. In the case of Tirathdas Saukatrai Projects Pvt. Ltd the petitioner approached this 5 Court alleging that inspite of notifying the impugned Scheme No.175 in the year 2012 the IDA had not developed the land and the petitioner was not able to use the same, hence, on this ground the Hon'ble Court issued direction for taking the land by way of temporary acquisition in 6 months and if the same is not done in 6 months then the land shall be given back to the land owner. However, the present writ petitioner has not came up with such a plea before this Court, therefore, he cannot pray for release of the land or compulsory acquisition.
Per contra, Shri V.K. Jain, learned senior counsel appearing on behalf of the respondent/writ petitioner submits that the petitioner filed the writ petition for the purpose of release of its land from the scheme and therefore, sought for quashment of the notices dated 09.09.2011 and 05.10.2011. The High Court under Article 226 of the Constitution of India is competent to grant the relief as per the discretion and keeping in view the facts and circumstances of the case. If the scheme is quashed then automatically the land of the petitioner gets released in favour of petitioner, therefore, even if there was no relief of release of the land but after quashment of the scheme the land automatically gets released. The petitioner prayed for disposal of the writ petition in light of the judgment passed in the case of Tirathdas Saukatrai Projects Pvt. Ltd(supra) and the counsel appeared on behalf of the IDA did not oppose the same therefore, present appeal is not maintainable as the order was passed by consent. Nothing 6 has been said in the entire writ appeal on the conduct of the counsel. Hence, the writ appeal is liable to be dismissed with cost.
We have gone through contents of writ petition and relief claimed therein. It is correct that the petitioner approached this Court seeking quashment of notice dated 09.09.2011 and 05.10.2011 but the intention of the petitioner behind the quashment is for the release of the land. In identical number of writ petitions for Scheme No.175, notice has not been quashed by the High Court and all the writ petitions have been disposed of with the following directions:
"The only change which has been pointed out by the learned counsel for the respondent is the decision of the Board as contained in Annx.R/4 in respect of offering the developed land in lieu of the land acquired. Such a decision does not form subject matter of any agreement arrived at between the parties, therefore it would be open to the parties to take into account the said decision of the Board in case if the parties arrive at any agreement.
Hence with the aforesaid exception, the present writ petitions are disposed of by holding that the directions issued in the case of Smt. Rupali by the writ court as well the Division Bench will apply mutatis mutandis in the case of the present petitioners also.
Let the signed order be placed in the record of W.P.No.4321/2017 and a copy thereof be placed in W.P.No.18005/2017."
The aforesaid decision passed by the single bench was challenged by the IDA before the Division Bench of this Court in W.A.No.261/2016 and the writ appeal has been disposed of by following directions:
"From the aforesaid, we are of the view that 7 respondents No.1 and 2 cannot be deprived from utilizing of the property in question for an indefinite period. It is also not in dispute that provisions of the Adhiniyam of 1973, on which basis of which direction has been made is directory in nature. There is no deeming provision that if the land development authority fails to acquire land within the specified period, as provided in the Adhiniyam of 1973, then the land would be reverted back to the landowners and in that circumstances, the Indore Development Authority is bound to issue "No Objection Certificate" to respondents No.1 and 2, so that the landowners can use their land for any other purpose, as per Master Plan. The order of the learned Writ Court was passed on 29.03.2006, but till today, no action has been taken by the appellant - Indore Development Authority to comply with the order passed in the writ petition, and therefore, we are of the view that the learned Writ Court has rightly directed the appellant that the offer made by respondents No.1 and 2 in open Court should be treated as offer under Section 56 of the Adhiniyam of 1973 and shall pay compensation, keeping in view the Act of 2013 within the specified period. In case the land is not acquired and no compensation is paid, then appropriate action shall be taken by the appellant so that the land shall revert back to the landowners, as directed by the learned Writ Court."
Thereafter, the IDA preferred the SLP No.6545/2019 before the Apex Court and vide order dated 11.03.2019 the writ appeal has been dismissed, therefore, the intention of all the land owners who approached this Court is to get their lands released from the scheme, hence, this Court has disposed of all the writ petitions by giving three options to the IDA as well as to the land owners so that their land can be released. In the second round of litigation before this Court between the land owners and IDA, all the writ petitions have been disposed of by following directions.
"10. In view of the aforesaid facts and 8 circumstances, maintaining parity with the order passed by the coordinate Bench in W.P.No.6318/2015 quoted above and attained finality, this batch of writ petitions are disposed of with the following order:
"(i) the IDA may offer to petitioners for mutual agreement under Section 56 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. Petitioners may agree and accept the offer and arrive at a mutual agreement;
(ii) however, in case, there is no mutual agreement between the parties as envisaged under section 56 of the Adhiniaym, 1973 within six months from today, the land shall be reverted back to the land owners and the IDA shall issue no objection certificate in regard to the land in question within thirty days thereof.
A copy of this order be placed on the record of all the connected writ petitions. No order as to cost."
Therefore, there is no substance in the argument of Ms. Mini Ravindran, learned counsel appearing on behalf of the appellant/Indore Development Authority that the petitioners have approached for quashment of the scheme and not for release of their lands. Hence, we do not find any substance in the writ appeal specially when the order was passed with the consent of appellant. The writ appeal is absolutely misconceived & devoid of substance.
Writ appeal stands dismissed with cost of
Rs.10,000/- payable to the respondent.
(MISS VANDANA KASREKAR) (VIVEK RUSIA)
Judge Judge
Jasleen
Digitally signed by Jasleen
Singh Saluja
Date: 2020.01.13 18:12:36
+05'30'